Case 1:10-cr-00485-LMB Document 352 Filed 12/16/14 Page 1 of 4 PageID# 2582

IN THE UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF VIRGINIA
Alexandria Division
UNITED STATES OF AMERICA
v.
JEFFREY ALEXANDER STERLING

)
)
)
)
)

No. 1:10cr485 (LMB)

UNITED STATES RESPONSE TO THE COURTS ORDER REGARDING THE

TESTIMONY OF JAMES RISEN
The United States, through undersigned counsel, hereby responds to the Courts Order,
dated December 9, 2014, Dkt. No. 350, regarding the governments position as to the testimony of
James Risen, and states as follows:
1.

At a status conference on October 10, 2014, prosecutors advised the Court that, in

connection with the possible testimony of Mr. Risen, they were in the process of complying with
the revised regulations governing the issuance of subpoenas to members of the news media. 28
C.F.R. 50.10. At subsequent hearings on November 20, 2014, and December 9, 2014, the
government reiterated that the authorization process remained ongoing.
2.

The 50.10 approval process has now concluded, and pursuant to that regulation,

the Attorney General has authorized the issuance of a subpoena for the testimony of Mr. Risen at
trial as well as any necessary pre-trial hearings. The Attorney General has authorized prosecutors
to seek Mr. Risens testimony with regard to the following facts:
a.

That Mr. Risen has a confidentiality agreement with his source (or sources) for

Chapter Nine of his book State of War and that he will not breach that agreement (or agreements);
b.

That Mr. Risen authored Chapter Nine of his book State of War, a March 2, 2002

Case 1:10-cr-00485-LMB Document 352 Filed 12/16/14 Page 2 of 4 PageID# 2583

newspaper article entitled Fired by C.I.A., He says Agency Practiced Bias; and a November 4,
2001 newspaper article entitled Secret C.I.A. Site in New York Was Destroyed on Sept. 11, that the
chapter and articles accurately reflect information provided to him by his source (or sources), that
statements attributed to an unnamed source were, in fact, made by an unnamed source, and that
statements attributed to an identified source were, in fact, made by an identified source; and
c.

That Mr. Risen had a prior non-confidential reporter-source relationship with

Jeffrey Sterling.
3.

Mr. Risen has at no time indicated a willingness to identify his source or sources.

On that point, Mr. Risen has been consistent: under no circumstances would he provide such
testimony. Risens counsel recently indicated that Mr. Risen continues to take this position.
4.

During the hearing on October 12, 2011, the Court endorsed the idea of convening

a hearing to moot Mr. Risens examination prior to his appearance before the jury at trial. Dkt.
No. 269 at 31-34. As it did in 2011, the government concurs. A moot of Mr. Risens testimony
would permit the parties to see exactly what questions Mr. Risen will answer, while leaving
sufficient time to resolve any related disputes efficiently and without burdening the jurys time.
To the extent Mr. Risen may refuse to answer certain questions posed by defense counsel (who, of

Case 1:10-cr-00485-LMB Document 352 Filed 12/16/14 Page 3 of 4 PageID# 2584

course, are not bound by the limitations placed on the prosecution by the Attorney Generals
authorization), the moot will allow the Court to address any resulting Sixth Amendment issues.

Respectfully submitted,

Jack Smith
Chief

Dana J. Boente
United States Attorney

Eric G. Olshan
Deputy Chief
Public Integrity Section
U.S. Department of Justice

James L. Trump
Senior Litigation Counsel
Dennis Fitzpatrick
Assistant United States Attorney
Eastern District of Virginia

By

/s/
James L. Trump
Attorney for the United States of America
United States Attorneys Office
2100 Jamieson Avenue
Alexandria, Virginia 22314
(703) 299-3726
(703) 837-8242 (fax)
jim.trump@usdoj.gov

Case 1:10-cr-00485-LMB Document 352 Filed 12/16/14 Page 4 of 4 PageID# 2585

CERTIFICATE OF SERVICE
I hereby certify that on December 16, 2014, I caused an electronic copy of the foregoing
to be filed and served via ECF on Edward B. MacMahon, Jr., and Barry J. Pollack, counsel for
the defendant, and David Kelley and Joel Kurtzberg, counsel for James Risen.

By

/s/
James L. Trump
Attorney for the United States of America
United States Attorneys Office
2100 Jamieson Avenue
Alexandria, Virginia 22314
(703) 299-3726
(703) 837-8242 (fax)
jim.trump@usdoj.gov